United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 28, 2004
_____________________
Charles R. Fulbruge III
No. 03-41216 Clerk
Summary Calendar
_____________________
TERRY VAUGHN; YVETTE HOLMAN,
Plaintiffs - Appellees,
versus
SABINE COUNTY, ET AL.,
Defendants,
SABINE COUNTY,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas, Beaumont
District Court Cause No. 1:01-CV-914
_________________________________________________________________
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1
EDWARD C. PRADO, Circuit Judge.
Appellees Terry Vaughn and Yvette Holman sued appellant
Sabine County for employment discrimination, under Title VII of
the Civil Rights Act of 1964, after not being rehired by
appellant Sabine County’s newly-elected Sheriff. The plaintiff-
appellees alleged that they were not rehired as deputy sheriffs
because they are women. Ultimately, a jury agreed and awarded
1
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1
Vaughn $61,000.00, and Holman $42,000.00, in front pay. The jury
also awarded each plaintiff $100,000.00 in past and future mental
anguish damages. The district court, however, reduced the awards
for mental anguish damages to Title VII’s statutory cap of
$50,000.00.2 The district court also awarded Vaughn $14,139.40,
and Holman $14.689.40, in front pay; the district court awarded
the plaintiffs $48,975.20 in attorney’s fees and costs. Sabine
County challenges these awards on appeal.
Evidence of Pretext
At the conclusion of the plaintiffs’ case, and again at the
conclusion of the evidence, Sabine County moved for judgment as a
matter of law. After the trial, Sabine County moved for a new
trial. In each case, Sabine County argued that the verdict was
against the great weight of the evidence. The district court
denied each motion.
As its first issue, Sabine County challenges the district
court’s denial of its motions for judgment as a matter of law and
for a new trial. Sabine County asserts that there was not enough
evidence to present the case to the jury, and that a reasonable
jury could not have rendered a verdict in favor of the plaintiffs
from the evidence presented at trial.
We review the denial of Sabine County's motions for judgment
2
See 42 U.S.C. § 1981a(b)(3).
2
as a matter of law de novo,3 applying the same standard as the
district court.4 We review the denial of a motion for a new
trial for abuse of discretion.5 Because Sabine County did not
introduce any new evidence relevant to a finding of
discrimination between its last motion for judgment as a matter
of law and its motion for a new trial, we need not consider
Sabine County’s argument about the motion for new trial if the
rulings on the motions for judgment as a matter of law were
proper.
Additionally, we forgo a discussion of the burden-shifting
process that occurs during the trial of an employment
discrimination case because the dispute has been fully
adjudicated by the fact-finder. “When, as here, a case has been
fully tried on its merits, we do not focus on the McDonnell
Douglas burden-shifting scheme. Instead, we inquire whether the
record contains sufficient evidence to support the jury's
ultimate findings."6
3
See Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d
278, 285 (5th Cir. 1999).
4
See Aetna Cas. & Sur. Co. v. Pendleton Detectives of Miss.,
Inc., 182 F.3d 376, 377 (5th Cir. 1999).
5
Industrias Magromer Cueros y Pieles v. La. Bayou Furs Inc.,
293 F.3d 912, 918 (5th Cir. 2002).
6
Rutherford v. Harris County, 197 F.3d 173, 180-81 (5th Cir.
1999) (quoting Smith v. Berry Co., 165 F.3d 390, 394 (5th Cir.
1999)).
3
We need not parse the evidence into discrete segments
corresponding to a prima facie case, an articulation of a
legitimate, nondiscriminatory reason for the employer's
decision, and a showing of pretext. “When a case has been
fully tried on the merits, the adequacy of a party's showing
at any particular stage of the McDonnell Douglas ritual is
unimportant.”7
“If the defendant properly moved for judgment as a matter of law
at the conclusion of all evidence . . ., the standard on appeal
for evaluating the sufficiency of the evidence is whether the
evidence, considered in the light most favorable to the verdict,
has such quality and weight that reasonable and fair-minded
persons could reach the same conclusion.”8 The court should
grant a motion for judgment as a matter of law when there is not
a sufficient conflict in evidence to create a jury question.9 “A
mere scintilla is insufficient to present a question for the
jury.”10
Sabine County maintains that it did not rehire the
plaintiffs because they scored poorly in front of an interview
board convened by the newly-elected Sheriff Maddox. The
plaintiffs, however, alleged that the interview board was merely
a vehicle to legitimize illegal employment discrimination. We
7
Id. (quoting Travis v. Bd. of Regents of Univ. of Tex.
Sys., 122 F.3d 259, 263 (5th Cir. 1997)).
8
McKenzie v. Lee, 259 F.3d 372, 374 (5th Cir. 2001).
9
See Travis, 122 F.3d at 263.
10
EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1443
(5th Cir. 1995).
4
will treat Sabine County's assertion that the plaintiffs were not
the most qualified for the full-time deputy positions as
determined by the interviewing board as a presumably legitimate,
nondiscriminatory reason for not rehiring the plaintiffs. Thus,
our task in this de novo review is to determine whether the
record contains sufficient evidence for a reasonable jury to
determine that Sabine County’s stated reason for not rehiring the
plaintiffs was pretext for discrimination.11
The record supports the jury’s determination that Sabine
County’s reason for not rehiring the plaintiffs was pretext for
discrimination. During trial, Vaughn and Holman testified that
they were required to interview before an interview board as a
precondition for being rehired as deputies for the Sabine County
Sheriff’s Department. Vaughn and Holman explained that after the
interview process, Sabine County sent out letters telling them
they were not selected for re-employment. The plaintiffs
maintained that the letters they received were different from the
letters sent to men who applied for deputy positions.
Although Sheriff Maddox maintained during the EEOC
investigation of the plaintiffs’ EEOC charge that he sent the
same letter to all rejected applicants, the evidence at trial
showed the letters sent to Holman and Vaughn were different from
the letters sent to male applicants. The letters sent to male
11
See Rutherford, 197 F.3d at 180-81.
5
applicants whom Sabine County did not hire invited them to join a
reserve program from which Sabine County would select additional
deputies as the need arose. The letters sent to the plaintiffs
did not contain an invitation to join the reserve program.12
Sheriff Maddox testified during trial that the difference in the
letters was merely an oversight.
In addition to the rejection letters, other evidence
presented at trial placed Sabine County’s stated reason for not
rehiring the plaintiffs into question. The evidence showed that
Sabine County used the interview board process only one time—when
it did not rehire Vaughn and Holman. Sheriff Maddox explained
that he composed his interview board primarily from citizens
untrained about what makes a competent police officer. Since
that time, Sabine County hired a male from the reserve program
which Vaughn and Holman were not invited to join. That
applicant’s previous interview board score was lower than
Holman’s score.
Sabine County’s previous Sheriff testified that he believed
the plaintiffs are more qualified than some of the individuals
Sheriff Maddox actually hired. Deputy Sheriff Wayne Davison
testified that the interview board seemed to fail to recognize
qualities important to competent deputies as the board ranked him
4 out of a possible score of 5 despite his 27 years of
12
The plaintiffs introduced the actual letters they received
from Sheriff Maddox.
6
experience. Lastly, the Chief Deputy testified that he turned
down another job offer prior to appearing before Sabine County’s
interview board and felt pretty comfortable that he would be
Chief Deputy before the board even convened.
This testimony and the rejection letters constitute
circumstantial evidence of pretext. Viewing this evidence
favorably to the verdict, reasonable and fair-minded jurors could
conclude that Sabine County’s stated reason for not rehiring the
plaintiffs was pretext for discrimination. As a result, the
district court did not err by denying Sabine County’s motions for
judgment as a matter of law or its motion for new trial.
Mitigation and Back Pay
As its second issue, Sabine County asserts the district
court erred by entering judgment for the jury’s award of back pay
because the plaintiffs failed to mitigate their damages. Under
Title VII, a plaintiff may receive back pay as long as she uses
reasonable diligence in finding substantially equivalent
employment.13 Whether the plaintiff has mitigated her damages is
a question of fact subject to review for clear error; the
employer has the burden to prove failure to mitigate.14
13
See Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982)
(explaining the relationship of 42 U.S.C. § 2000e-5(g) with
common law duty to minimize damages).
14
See Sellers v. Delgado College (Sellers II), 902 F.2d
1189, 1193 (5th Cir. 1990).
7
Although a Title VII claimant has a duty to mitigate her
damages, she has no obligation to accept employment that is not
substantially equivalent to her prior employment in order to
minimize damages.15 “‘Substantially equivalent employment’ for
purposes of Title VII litigation is that ‘employment’ which
affords virtually identical promotional opportunities,
compensation, job responsibilities, working conditions, and
status as the position from which the Title VII claimant has been
discriminatorily terminated.”16 A court evaluates the
reasonableness of a Title VII claimant's diligence in light of
the individual characteristics of the claimant and the job
market.17
In the instant case, the evidence supports the district
court’s determination that Vaughn and Holman mitigated their
damages. The evidence demonstrated that Sabine County is a small
rural community with very few law enforcement, or other
government, employment opportunities. Both plaintiffs testified
they applied for and sought other employment. Holman testified
that she inquired about and applied for jobs at the City of
Hemphill. Holman also explained that she worked at a doughnut
shop that Vaughn opened after she was not rehired, a fast food
15
See Ford Motor Co., 458 U.S. at 231.
16
Sellers v. Delgado Cmty. College, 839 F.2d 1132, 1138 (5th
Cir. 1988).
17
See Sellers II, 902 F.2d at 1193.
8
establishment, a legal office, a school doing substitute
cleaning, and a car wash. Holman testified that at the time of
trial she was doing contract work for STARCON International in
Illinois. These jobs are not the same type of work as her work
as a deputy sheriff, but these jobs reflect Holman’s attempts to
earn a living where she was unable to obtain another law
enforcement position.
Vaughn testified that she applied for a job in the Hemphill
school district, but could not apply for jobs that were far from
home due to her husband’s failing health. Instead, she explained
that she opened and operated a doughnut shop. When this venture
failed, she began to study to become a real estate agent.
Although not the same type of work as her work as a deputy
sheriff, these efforts reflect Vaughn’s attempts to earn a living
where she was precluded from obtaining another law enforcement
position.
By seeking and accepting the best employment they could
find, even though law enforcement opportunities were not
available, the plaintiffs mitigated their damages. Because
evidence in the record supports the district court’s
determination that the plaintiffs mitigated their damages, the
district court did not clearly err by entering judgment for back
pay.
The Amount of Back Pay
9
In its third issue, Sabine County maintains the district
court erred by failing to reduce the jury’s award of back pay.
We review the district court’s order awarding back pay for abuse
of discretion.18 Although the district court should defer to the
jury’s findings, the court abuses its discretion when it enters
judgment on a verdict unsupported by evidence.19 We examine each
plaintiff’s back pay award separately.
Vaughn testified that she earned $1991.40 per month as a
deputy sheriff. At the time of trial, 25 months had passed since
Vaughn and Holman were not rehired. Based on a monthly salary of
$1991.40, Vaughn’s maximum earning capacity during the 25-month
back pay period was $49,785.00. The jury, however, awarded
Vaughn $61,000.00, which was $11,215.00 more than Vaughn’s
maximum earning capacity. A jury may consider the value of
employee benefits in awarding back pay,20 but no evidence in the
record supports the $11,215.00 increase in Vaughn’s maximum
earning capacity. Although Vaughn testified that she lost
$14,000.00 in her efforts to open and operate a doughnut shop,
18
See Giles v. Gen. Elec. Co., 245 F.3d 474, 492 (5th Cir.
2001).
19
See Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d
642, 660 (5th Cir. 2002).
20
See Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950
(5th Cir. 1993) (declining to automatically grant back pay based
on insurance benefits, but acknowledging they may be recoverable
where plaintiff shows damage).
10
these damages are not appropriate for back pay.21 Thus, the
district court abused its discretion by failing to reduce
Vaughn’s award.
Holman testified she earned $2,041.40 per month as a deputy.
Thus, her maximum earning capacity during the 25-month period was
$51,035.00. Holman also testified that she earned $15,541.00 in
2001 by working several different jobs. The district court must
reduce an award for back pay by a plaintiff’s interim earnings
such as Holman’s earnings in 2001.22 Reducing Holman’s maximum
earning capacity by her earnings supports an award of $35,494.00.
The jury, however, awarded her $42,000.00, which was $6,506.00
more than her maximum earning capacity reduced by her 2001
earnings. Holman was less sure about how much money she earned
during 2002; her award, however, already exceeds any limit
supported by evidence in the record. As a result, the district
court abused its discretion by failing to reduce Holman’s award.
Front Pay
The district court awarded each plaintiff 11 months of front
pay based on the number of months remaining in Sheriff Maddox’s
term. The district court first computed the amount each
plaintiff could have earned during the 11-month period had she
21
See Floca v. Homcare Health Servs., 845 F.2d 108, 113 (5th
Cir. 1988)(district court properly disallowed front pay, as a
double benefit, when plaintiff chose to go to school).
22
See 42 U.S.C. § 2000e-5(g)(1).
11
been rehired. The court then reduced each resulting maximum
earning capacity by an amount equal to Holman’s projected
earnings at STARCON.
On appeal, Sabine County challenges the district court’s
award of front pay. Sabine County maintains that the plaintiffs
should be precluded from any award of front pay because they
failed to mitigate their damages. Additionally, Sabine County
argues that an award of front pay is improper because the
plaintiffs’ earning capacities are currently greater than they
were as employees of Sabine County.
We review the district court’s award of front pay for abuse
of discretion.23 When reinstatement is not a viable option, the
district court, in its discretion, may order front pay in lieu of
reinstatement into a hostile work environment.24 The parties to
this lawsuit do not dispute the district court’s determination
that reinstatement is not a viable option. Where reinstatement
is not an option, a plaintiff must use reasonable diligence to
find substantially equivalent employment to justify awarding
front pay.25 As with back pay, a plaintiff’s right to receive
front pay is subject to her duty to mitigate damages.26 Having
23
See Giles, 245 F.3d at 489.
24
See Pollard v. E.I. Du Pont De Nemours & Co., 532 U.S.
843, 846 (2001).
25
See id.
26
See Sellers II, 902 F.2d at 1196.
12
already determined the evidence supports the jury’s determination
that Vaughn and Holman mitigated their damages, we consider only
whether the amount of the awards are proper.
Sabine County complains that the district court offset the
awards of front pay by $706.00 per month rather than by $706 per
week. The record supports this argument. Although the district
court used $706.00 per month in calculating Holman’s projected
earnings at STARCON, Holman testified during trial that she
earned about $700.00 per week at STARCON. Based on $700 per
week, Holman could potentially earn $2,800.00 per month.
Although this potential is more than either plaintiff earned as a
deputy sheriff for Sabine County, an award of front pay is not
necessarily precluded. “Calculations of front pay cannot be
totally accurate because they are prospective and necessarily
speculative in nature.”27 In this case, the ability to earn
$706.00 a week is based on the availability of periodic contract
work involving travel to other states. The evidence indicates
that Vaughn cannot travel far from home because of her husband’s
health. We need not comment on this matter further, however,
since it is clear the district court erred in calculating its
award because the award was not based on evidence in the record.
As a result, the district court erred in the award of front pay.
27
Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 870
(5th Cir. 1991); see Julian v. City of Houston, 314 F.3d 721, 729
(5th Cir. 2002).
13
Compensatory Mental Anguish Damages
Sabine County asserts that the plaintiffs’ evidence does not
support their awards for mental anguish and that the awards are
excessive. We review an award for mental anguish damages for
abuse of discretion.28 Evidence of mental anguish need not be
corroborated by doctors, psychologists, or other witnesses,29 but
the plaintiff must support her claims with competent evidence
regarding the “nature, extent, and duration” of the harm.30
In arguing that the district court’s awards are excessive,
Sabine County isolates brief statements the plaintiffs made
regarding their damages and asks us to ignore testimony detailing
why the plaintiffs were anxious, suffered from sleep loss, and
endured humiliation. During trial, the plaintiffs testified as
to the nature, extent, and duration of the sleeplessness, anxiety
and humiliation they experienced. They explained their
humiliation by describing their loss of standing in the
community, phone calls from neighbors and associates, and their
minimum wage jobs for employers such as “Fat Freds.” The
28
See Patterson v. PHP Healthcare Corp., 90 F.3d 927, 940
(5th Cir. 1996).
29
See Hitt v. Connell, 301 F.3d 240, 250 (5th Cir. 2002)
(“[t]he plaintiff’s own testimony, standing alone, may be
sufficient to prove mental damages, but only if the testimony is
‘particularized and extensive’ enough...”) (internal citation
omitted).
30
See Brady v. Fort Bend County, 145 F.3d 691, 720 (5th Cir.
1998).
14
district court observed the authenticity of their emotions as
they testified.
Nevertheless, Sabine County asks us to dispose of this
appeal in the same manner as we did in Brady v. Fort Bend
County,31 and Hitt v. Connell.32 In Brady, this Court reviewed
mental anguish damages on a motion for judgment as a matter of a
law requiring de novo review.33 In Hitt, although we reviewed
for abuse of discretion, we overturned the jury’s verdict of
$224,000.00 for embarrassment and depression because the
plaintiff’s statements were few and conclusory.34 This case is
different from Brady because here we review the district court’s
award for abuse of discretion rather than de novo, and different
from Hitt because the plaintiffs’ statements were neither few nor
conclusory.
Vaughn and Holman proved their damages by testifying about
the anxiety, sleep loss, and humiliation they experienced from
the loss of well-respected jobs in the community, losses which
relegated them to minimum wage labor. “Judgments on non-economic
damages are notoriously variable; we have no basis to reverse the
31
See Brady, 145 F.3d at 691.
32
See Hitt, 310 F.3d at 250.
33
See Brady, 145 F.3d at 717.
34
See Hitt, 301 F.3d at 251.
15
jury’s evaluation.”35 The district court did not abuse its
discretion by failing to set aside the jury’s verdict.
Exclusion of “After-Acquired Evidence”
During trial, Sabine County attempted to introduce evidence
that Holman took her personnel file when she left the Sheriff’s
Department. Sabine County maintains this action constituted
criminal conduct. The district court, however, excluded the
evidence. On appeal, Sabine County argues that the district
court erred by excluding the evidence. Although its argument is
not clearly articulated, Sabine County apparently maintains the
evidence precludes Holman from an award of front pay.
We review a district court’s exclusion of evidence for abuse
of discretion.36 We will not disturb an evidentiary ruling
unless it affects a substantial right of the complaining party.37
“Where an employer seeks to rely upon after-acquired evidence of
wrongdoing, it must first establish that the wrongdoing was of
such severity that the employee in fact would have been
terminated on those grounds alone if the employer had known of it
35
Forsyth v. City of Dallas, Tex., 91 F.3d 769, 774 (5th
Cir. 1996).
36
See Guillory v. Domtar Indus., 95 F.3d 1320, 1329 (5th
Cir. 1996) (citing Mac Sales, Inc., v. E.I. du Pont de Nemours &
Co., 24 F.3d 747, 753 (5th Cir. 1994)).
37
See id. (citing Polythane Sys. Inc. v. Marina Ventures
Int’l Ltd., 993 F.2d 1201, 1208 (5th Cir. 1993).
16
at the time of the discharge.”38
The after-acquired evidence theory has no bearing on this
case. Holman’s action occurred after Sabine County decided not
to offer her employment. Logically, Sabine County could not have
known of Holman’s actions at the time she was not rehired because
those actions had not yet occurred.39 Because the decision had
already been made to not hire Holman before she purportedly took
the file, Sabine County could not establish that any wrongdoing
was of such severity that the wrongdoing alone would have
resulted in Holman’s termination. As a result, the district
court did not err by excluding the evidence of the allegedly
illegal conduct.
Attorney’s Fees
Finally, Sabine County argues that the district court’s
award of attorney’s fees is excessive in light of the district
court’s errors. We review the award of attorney’s fees for abuse
of discretion.40 The calculation of attorney's fees involves two
steps. First, the court calculates a "lodestar" fee by
multiplying the reasonable number of hours expended on the case
38
Smith v. Berry Co., 165 F.3d 390, 395 (5th Cir. 1999)
(citing McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362-
363 (1995)).
39
See id.
40
Hopwood v. Texas, 236 F.3d 256, 277 (5th Cir. 2000).
17
by the reasonable hourly rates for the participating lawyers.41
The court then considers the following factors in determining
whether the lodestar figure should be adjusted upward or
downward:
(1) the time and labor required for the litigation;
(2) the novelty and difficulty of the questions
presented;
(3) the skill required to perform the legal services
properly;
(4) the preclusion of other employment by the attorney
due to acceptance of the case;
(5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the
circumstances;
(8) the amount involved and the result obtained;
(9) the experience, reputation and ability of the
attorneys;
(10) the "undesirability" of the case;
(11) the nature and length of the professional
relationship with the client; and
(12) awards in similar cases.42
The district court has broad discretion in awarding attorney’s
fees, and an award of fees should not result in further
significant litigation.43
In this case, the district court’s detailed order clearly
indicates the court considered the lodestar fee, the number of
hours required to prosecute the plaintiffs’ case, and the factors
discussed above. Although the “amount [of damage] involved, and
41
See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th
Cir. 1998).
42
See Johnson v. Georgia Highway Express Inc., 488 F.2d 714,
717-19 (5th Cir. 1974) (emphasis added).
43
See Hopwood, 236 F.3d at 277.
18
the result obtained,” may affect attorney’s fees,44 Sabine County
advances no argument about why the awards are excessive other
than arguing that the plaintiff must be the prevailing party in
order to obtain an award.45 After our review, the plaintiffs
remain prevailing parties. Hence, the district court did not
abuse its discretion in awarding attorney’s fees.
Conclusion
Because insufficient evidence exists to support the district
court’s award of back pay, we REVERSE the district court’s award
of back pay and REMAND the case for recalculation of the amount
of back pay. Because the district court erred in its calculation
of front pay, we REVERSE the district court’s award of front pay
and REMAND the case for recalculation of front pay. We AFFIRM
the district court’s judgment in all other respects.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
44
See Johnson, 488 F.2d at 718-19.
45
See Farrar v. Hobby, 506 U.S. 103, 108-09 (1992).
19